Back
2023 Supreme(Del) 4347
IN THE HIGH COURT OF DELHI AT NEW DELHI
Najmi Waziri, Sudhir Kumar Jain, JJ.
Hridesh Kumar Pathak – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 10728 of 2021 & CM Appls. 33138-39 of 2021
Decided On : 16-05-2023
Mr. Anshul Gupta, Ms. Kirti Dua, Mr. Shubham Kaushik, Mr. Ravi Sandilkar Prakhar Bhardwaj and Ms. Shubhangi Tiwari, Advocates, for the Petitioner.
Mr. Rajeeve Mehra, Senior Advocate (Amicus Curiae), for the Respondent.
Mr. Vijay Joshi, Advocate, for R-1/UOI.
Mr. Ramesh Babu, Ms. Manisha Singh, Ms. Jagriti Bharti and Ms. Tanya Chowdhary, Advocates, for RBI/R-2.
Mr. O.P. Gaggar, Advocate with Mr. Sachindra Karn, Advocate, for the Respondent.
The court's decision emphasized the principle that no recovery liability can be fastened upon the petitioner until the proceedings have been exhausted, and the petitioner's right to pursue remedies was reserved.
Headnote:
Stay - Recovery Proceedings - The court granted stay of all proceedings emanating from the orders passed in the Original Application, directing that no recovery liability can be fastened upon the petitioner until the proceedings have been exhausted.
Fact of the Case:
The petitioner sought stay of all proceedings emanating from the orders passed in the Original Application before the DRT- II, Delhi, as monies were to be recovered first from defendants 1 and 2. The petitioner had filed a claim for recovery against Shubhkamna Buildtech Private Limited in the NCLT proceedings, and the claim had been admitted and the Resolution Plan approved.
Finding of the Court:
The court granted the stay of all proceedings and ruled that no recovery liability can be fastened upon the petitioner until the proceedings have been exhausted, reserving the petitioner's right to pursue remedies at the appropriate stage.
Issues: Stay of recovery proceedings, liability of the petitioner, and reservation of the petitioner's right to pursue remedies.
Ratio Decidendi: The court's decision was influenced by the fact that monies were to be recovered first from defendants 1 and 2, and the petitioner had filed a claim for recovery against Shubhkamna Buildtech Private Limited in the NCLT proceedings, which had been admitted and the Resolution Plan approved.
Final Decision: The petition was disposed-off with the grant of stay of all proceedings and the reservation of the petitioner's right to pursue remedies at the appropriate stage.
JUDGMENT
Najmi Waziri, J. (Oral)
The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. The petitioner seeks stay of all the proceedings emanating from the orders that may be passed in OA No. 394 of 2018 before the DRT- II, Delhi.
2. The final order passed in the said application on 06.08.2022 directs as under:
"6.(i) In light of the above facts & circumstances, the Original Application is hereby allowed to the effect that the applicant bank is entitled to receive a sum of 31,49,351/- (Rupees Thirty One Lakhs, Forty None Thousand, Three Hundred and Fifty One Only), as on 28.02.2018, less the amount already received during this intervening period (if any), along with pendente-lite and future simple interest @ 11.50% per annum, and costs, till realization, from 01.03.2018, as mentioned in following para 6 (ii).
(ii) In case of failure to complete the project and pay to the applicant bank, on the part of defendant No. 3/subsequent transferee of the project; or completion of project, but execution of sale deed in favour of any third party; the aforesaid amount shall be recovered from the sale of properties of Defendant No 3, with direction to compensate defendant nos. 1 & 2, from the excess amount with respect to value of the flat. In case, the defendants No 3 is under liquidation, applicant bank is at liberty to stake its claim before the Liquidator/ NCLT, as the case may be.
Alternatively, in case of completion of the housing project and execution of sale deed in favour of Defendant Nos. 1 & 2, but failure to pay to the applicant bank, on the part of Defendant Nos. 1 & 2, the aforesaid amount shall be recovered from the sale of charged property, bearing Unit No. T- 2(A)/B-902, Type-B, 9th Floor, measuring Super Area 1325 sq. ft., in Shubhkamna City, situated at Group Housing Plot No. 02A, Sector-1, Greater Noida, Gautam Budh Nagar (UP) after notifying the proposed auction sale of the said property on ebkery site, and after obtaining the valuation of the property. Excess amount of the auction sale proceeds, over therecoverable dues, if any, be returned to defendant Nos. 1 & 2. Shortfall, if any, shall be recovered from the sale of the personal assets, movable and immovable, of Defendant Nos. 1 & 2, jointly and severally...."
3. The learned counsel for the petitioner submits that neither the property was handed over to him nor the sale deed was executed in his favor apropos the allotted flat. He further submits that the petitioner has already filed a claim for recovery against the R- 5/Shubhkamna Buildtech Private Limited in the NCLT proceedings. The claim has been admitted and the Resolution Plan has been approved.
4. As noted from the above, monies have to be recovered in terms of para 6(ii) first from defendants 1 and 2. Therefore, till such time that the proceedings have been exhausted, no recovery liability can be fastened upon the petitioner. The petitioner would not be required to file any affidavit before the Recovery Officer, at this stage, reserving the right of the petitioner to pursue his remedies at the appropriate stage.
5. The petition is disposed-off in the above terms.
